DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
The amendments filed with the written response received on September 29, 2025 have been considered and an action on the merits follows. As directed by the amendment, claims 1, 3 and 8 have been amended; claims 2, 5 and 9 are canceled; claims 4 and 10 are withdrawn from further consideration. Accordingly, claims 1, 3, 4, 6-8 and 10 are pending in this application, with an action on the merits to follow regarding claims 1, 3 and 6-8.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: claim 1 has been amended to recite “the cushioning-boosting component extends from a heel end of the midsole to where the toe end of the midsole upper layer is adhered with the toe end of the midsole lower layer, and each space between two adjacent boosting elements is a through hole”, which is not recited anywhere in the written Specification. Examiner notes that the limitation of each space between two adjacent boosting elements being a through hole appears to at least be supported by the context of the language in the Specification in ¶ 0017 and 0034 stating “the cushioning-boosting component 3 has a plurality of boosting elements 31 and is in hollowed out shape”.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 6 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Lekhtman et al. (hereinafter “Lekhtman”) (US 2010/0223810) in view of Peyton et al. (hereinafter “Peyton”) (USPN 9,226,545).
Regarding independent claim 1, Lekhtman discloses a cushioning-boosting shoe sole with enhanced stability (see Figs. 1-6; ¶ 0001 discloses cushioning; Examiner notes that the phrase “with enhanced stability” does not further structurally define the claimed invention in any patentably-distinguishing sense) comprising a midsole (upper layer #202 and lower layer #204 generally defines an overall “midsole”, inasmuch as the midsole has been defined in the claim), wherein a cushioning-boosting component is sandwiched in a middle of the midsole (see Fig. 3, which shows a collection of floating hinges #214 (i.e. the cushioning boosting component) in a middle of the upper and lower layers #202 and #204), the cushioning-boosting component is provided with a cavity inside the cushioning-boosting component (there is a cavity in which the floating hinges are disposed, to permit the hinges’ leaf spring portions to collapse and rebound therein), and a plurality of boosting elements are disposed in the cavity (the floating hinges are the boosting elements of the cushioning boosting component, and are disposed in the cavity (Fig. 3)), wherein a cross-section of each of the boosting elements is in the shape of “<” (see Fig. 3, floating hinges #214), the cushioning-boosting component being integrated construction (everything in the sole of Lekhtman is “integrated” construction, inasmuch as the claim requires), wherein the midsole includes a midsole upper layer (#202; Fig. 3 of Lekhtman) and a midsole lower layer (#204; Fig. 3 of Lekhtman), and a toe end of the midsole upper layer is adhered with a toe end of the midsole lower layer (as shown in Fig. 3, the toe ends of the upper #202 and lower #204 midsole layers are adhered together), wherein the cushioning-boosting component extends from a heel end of the midsole to where the toe end of the midsole upper layer is adhered with the toe end of the midsole lower layer (¶ 0039 discloses that the several floating hinges #214 are disposed along the entire length of #200; see Fig. 1-4, 7 and 8 of Lekhtman), and each space between two adjacent boosting elements is a through hole (intervening channel #222 disposed between each adjacent pair of the floating hinges #213, such that the floating hinges #214 and intervening channels #222 extend continuously, without interruption, across the width of #200 (¶ 0043 of Lekhtman)). Lekhtman does not teach that the cavity has an upper wall and a lower wall as part of the cushioning boosting component, to which the boosting elements are connected.
Peyton teaches a sole with a midsole that has spring-like members housed therein (#64 and #68 in Peyton form leaf springs of the biasing member #38, which are disposed in a recess in the midsole #32). The leaf springs of Peyton are connected within a cavity defined by upper spring plate #46 and lower spring plate #48, within the midsole’s recess #44.
Lekhtman and Peyton teach analogous inventions in the field of soles with leaf spring members disposed therein. It would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to have added an upper spring plate and a lower spring plate to the top and bottom ends of the floating hinges #214 in Lekhtman, as taught by Peyton, in order to provide added support for the hinges within the sole. As a result of the modification, the shoe sole’s cushioning boosting component (i.e. constituted by the upper and lower spring plates, and the boosting element floating hinges therewithin) would have the cavity with an upper wall and a lower wall, to which the boosting elements would be connected.
Regarding claim 6, the modified shoe sole of Lekhtman (i.e. Lekhtman in view of Peyton, as applied to claim 1 above) is disclosed such that a material of the midsole is a resilient rubber compound (¶ 0035 of Lekhtman), but is silent to specifying that the rubber compound includes molded ethylene vinyl acetate (MD) or expanded thermoplastic polyurethane (ETPU). However, Peyton discloses that its midsole can be formed of polyurethane or ethylvinylacetate, and it would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to have used the EVA of Peyton as the material of choice for the midsole of Lekhtman, in order to provide a known material that can provide comfort and resilient cushioning for the foot of the wearer.
Regarding claim 8, the modified shoe sole of Lekhtman (i.e. Lekhtman in view of Peyton, as applied to claim 1 above) is disclosed such that the cushioning-boosting component is sandwiched between the midsole upper layer and the midsole lower layer (see Fig. 3 of Lekhtman), but Lekhtman is silent to a material of the cushioning-boosting component being thermoplastic polyurethane (TPU). However, Peyton teaches that its leaf springs can be made of thermoplastic polyurethane (Col. 4, Line 59 through Col. 5, Line 2 of Peyton), and it would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to have used TPU as the resilient material of choice (as taught by Peyton) for the floating hinges #214 (i.e. boosting elements of the cushioning-boosting component) in order to provide a known material that can provide rebound capabilities for the user when walking or running while wearing the shoe sole.
Claims 3 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Lekhtman in view of Peyton as applied to claim 1 above, and further in view of Rabushka (US 2007/0271818).
Regarding claim 3, the modified shoe sole of Lekhtman (i.e. Lekhtman in view of Peyton, as applied to claim 1 above) is disclosed such that there is tread in the form of ribs #212, but does not teach that the midsole lower layer (#204) is further adhered with an outsole.
Rabushka teaches a sole with spring members therein, wherein the sole can have other materials designed for better traction, frictional wear and tear, puncture resistance, etc. applied to the bottom of the shoe wot protect the other components of the shoe (¶ 0041 of Rabushka).
Modified Lekhtman and Rabushka teach analogous inventions in the field of shoe soles with springs embedded therein. It would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to have substituted the integral ribs #212 in Lekhtman for a further layer of material added to the bottom surface of the lower layer #204 of Lekhtman for added traction and frictional wear and tear resistance, as taught by Rabushka, such as differentiating the grip capabilities for the wearer, whereas keeping the ribs as the same material as the other parts of the sole would limit the functionality of the tread to the capabilities of said same material (i.e. providing a distinct additional layer for a traction outsole could use different types of known rubber materials that would be more durable than the types of rubber used for the floating hinges and other sole layers, by non-limiting example).
Regarding claim 7, the modified shoe sole of Lekhtman (i.e. Lekhtman in view of Peyton and Rabushka, as applied to claim 3 above) is disclosed such that the outsole’s material (i.e. the added distinct outsole layer from Rabushka into Lekhtman’s sole structure) can provide better traction and/or frictional wear and tear resistance (¶ 0041 of Rabushka), but Rabushka is silent to specifying that the added other materials for the better traction and/or frictional wear and tear resistance includes rubber or thermosetting cast polyurethane elastomer. Peyton, however, teaches that durable materials are known for outsoles that are wear-resistant and include texturing to improve traction (¶ 0003 of Peyton), wherein the outsole of Peyton can be made of carbon black rubber compound (¶ 0026 of Peyton). It would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to have selected carbon black rubber compound as the durable, wear-resistant material of choice for the distinct outsole layer of modified Lekhtman in order to provide a known material that can provide durability and enhanced traction for the wearer during use, as is very well-known in the art of footwear soles.
Response to Arguments
Applicant's arguments filed September 29, 2025 have been fully considered but they are not persuasive.
With respect to the prior art Lekhtman, Applicant argues: “…the floating hinges 214 disclosed in Lekhtman (corresponding to the "boosting elements") are arranged only along the two sides of the sole. As illustrated in the cross-sectional view of Figure 9 of Lekhtman, these floating hinges 214 are confined to the lateral sides of the sole and are separated from one another by intervening material located in the central region of the sole”.
In response, Examiner notes that Applicant has mischaracterized Fig. 9 as being a cross-sectional view, wherein it is actually “a rear elevation [view] depicting the heel region of the outer sole” (see ¶ 0033 of Lekhtman). Lekhtman, at ¶ 0043, articulates that “preferably the mid-sole 206 includes an intervening channel 222 disposed between each adjacent pair of the floating hinges 214, such that the floating hinges 214 and the intervening channels 222 extend continuously, without interruption, across the width of the outer sole 200”. Therefore, contrary to Applicant’s argument, the channels (i.e. through holes) do actually extend continuously across the width of the sole.
Applicant further argues: “Lekhtman discloses floating hinges that are directly connected to the outsole of the shoe. This configuration differs from claim 1, in which the cushioning-boosting component is bonded to the outsole”. Examiner notes that claim 1 does not even recite an outsole, and none of the claims recite that the cushioning-booting component is “bonded” to an outsole. Examiner acknowledges that claim 3, which positively recites “an outsole”, does recite “wherein the midsole lower layer is adhered with an outsole”. Applicant’s arguments are not commensurate with the manner in which the prior art was applied. Lekhtman (both previously, and again in the present Office Action) is not relied upon for teaching the “outsole”, for purposes of addressing the claim language. The outsole, for purposes of addressing the claim language, was incorporated into a modified form of Lekhtman’s sole via the teachings of Rabushka, as detailed previously, and again above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/JAMESON D COLLIER/ Primary Examiner, Art Unit 3732